Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 Hearing dates: 18 September 2017 Decision date: 20 September 2017 Before: Gleeson JA Decision: 2017/165290 (1) The appellant provide within 14 days security in the sum of $65,000 for the respondents' costs of the appeal by payment of that amount into court, or in such other form as the appellant and the respondents may agree before 4 October 2017.

(2) Stay these proceedings until the appellant has provided security for the respondents' costs of the appeal in accordance with order 1 above.

(3) The appellant to pay the respondents' costs of the amended notice of motion dated 6 September 2017.

2016/80389 (1) The freezing orders made by the Court against the First Defendant, Timothy (Tim) Xenos (also known as Efthymios Xenos) in proceedings 2016/80389 on 14 March 2016 (as varied on 17 March 2016 and 10 May 2016 and extended on 15 May 2017 and 3 August 2017) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding sub-par (5), so that order 10 reads: "This order does not prohibit: … (5) the First Defendant from paying, or otherwise taking steps to provide out of his assets, security for the costs of the First and Second Plaintiffs (being the Respondents in proceeding 2017/165290) in proceeding 2017/165290, in the sum of $65,000". Catchwords: PROCEDURE – Motion seeking security for costs of an appeal – whether respondents have demonstrated special circumstances exist enlivening the discretion to order security for costs – where appellant has not led any evidence or defended the motion – where appellant has not established that order for security for costs would stultify appeal – where appellant seeks to raise wide-ranging arguments on appeal – where appellant seeks to raise on appeal new points not raised at trial – where prospects of success in appeal are very weak – where real risk that respondents would not recover costs of appeal from appellant if they are successful. Legislation Cited: Corporations Act 2001 (Cth), ss 180, 181, 182, 286(1), 344(1) Evidence Act 1995 (NSW), s 140 Uniform Civil Procedure Rules 2005 (NSW), rr 51.50, 51.53(1) Cases Cited: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880 Bell Wholesale Co Ltd v Gates Expert Corporation (1984) 2 FCR 1 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Boncristiano v Lohmann [1998] 4 VR 82 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Fox v Percy (2003) 214 CLR 118 Gray t/as Clarence Valley Plumbing v Ware Building Pty Ltd [2012] NSWCA 438 JM Properties Pty Ltd v Strata Corporation No 13975 Inc [2006] SASC 227 Marks-Isaacs v Fowler [2005] NSWCA 37 Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Pi v Zhou [2017] NSWCA 16 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 P S Chellaram & Co Ltd v China Ocean Shipping (1991) 102 ALR 321; [1991] HCA 36 RACV Insurance Pty Ltd v Unisys Australia Ltd [2001] VSC 300 Shannon v Australia and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563 Starr-Diamond v Diamond [2013] NSWCA 7 Swift v McLeary [2013] NSWCA 173 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 Category: Procedural and other rulings Parties: Timothy Xenos (aka Efthymios Xenos) (Appellant) FAL Healthy Beverages Pty Ltd (First Respondent) FAL Retail Pty Ltd (Second Respondent) Representation: Counsel: No appearance (Appellant) Mr J Arnott (Respondents)